An important article about the roles of USGBC, LEED, and the LEED accredited professional appears in the most recent issue of ArchitectureBoston, a quarterly publication of the Boston Society of Architects.

Written by Michael Liu, a principal at The Architectural Team in Chelsea, Massachusetts, the piece notes the proliferation of LEED-driven legislation at the state and local levels. It observes that “[a]lthough the USGBC’s LEED system has done more to bring the cause of sustainability into the public consciousness than an other, perhaps the time has come to revisit that assumption in the case of a private regulatory body that is not answerable to governmental authority.”

While this issue is not necessarily a novel one, it is significant that a major architectural publication has openly asked the question. The article itself appears to be motivated (at least in part) by Henry Gifford’s lawsuit against USGBC. From that perspective, perhaps Mr. Gifford’s suit can already be deemed a success, regardless of the Southern District of New York’s decision on USGBC’s pending motion to dismiss his complaint.

Liu asks whether “[t]he shrill original allegations aside, at its core, the [Gifford v. USGBC] case raises the question of whether it is appropriate for a private fee-generating nongovernmental organization to assume what amounts to a regulatory role in the building industry.” This legal concept is likely familiar to you: by relying on the LEED system within legislation, state and local governments have effectively punted control over their programs to an unaccountable private third-party organization.

As we’ve noted here previously, although this type of policymaking may have legal repercussions worth discussing under the non-delegation doctrine, Liu’s article is more concerned with the “process of certifying buildings and the creation of a new fee-generating bureaucratic structure to do so.” Although he does not walk through any proposed solution, Liu writes that “[i]t seems fair to ask whether so much administrative complexity and hierarchy actually advances the cause of sustainability.”

The article refrains from critiquing LEED itself. (“The issue then is not the LEED rating system, the virtues and shortcomings of which can be separately discussed.”) But Liu identifies many of the legal process questions that have floated across the green legal landscape since LEED-driven legislation began to proliferate in the mid-2000s.

One open issue is whether the IGCC will become the policymaking tool that LEED itself was never intended to be. Already several states have incorporated it into building codes. The IGCC itself raises a host of issues outside the scope of both this article and Mr. Liu’s. But shining a spotlight on these issues as green building regulatory activity continues is critical, particularly as construction starts increase in an improving real estate climate.